ACLU Public Records Requests Shed New Light on Use of Cell Phone Tracking

Over the weekend, the ACLU released an exhaustive study of state and local law enforcement’s surveillance practices in regards to how often police forces are tracking citizens’ movements through their cell phones. The findings were staggering. As the New York Timesreported, the documents prove warrantless cell phone tracking “has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, documents show.”

Thirty-five ACLU affiliates helped file over 380 public records requests, and they received over 5,500 pages of documents in response from over 200 local law enforcement agencies. Despite the invasive nature of cell tracking, “only a tiny minority”—10 agencies total—consistently obtained a warrant before tracking someone through their cellphone.

EFF has repeatedly argued that law enforcement should be required to get a warrant before tracking someone’s movements through their phone. The ACLU’s important work shows that the problem is much more widespread than previously reported and underscores the need for either Congress or the courts to definitively declare that a warrant should be required before the police can turn a device in your pocket into a surveillance tool.

FOIA Lawsuits Seek Answers on Federal Government’s Drone Programs

In a stinging blog post, New York Times editorial page editor Andrew Rosenthal accused the Obama administration of using secrecy to avoid legal accountability, declaring, “In some ways, his administration is even worse than the Bush team when it comes to abusing the privilege of secrecy.”

Rosenthal referred to two Freedom of Information Act lawsuits the ACLU filed that demanded the government release evidence and the legal authority used to justify the killings of American citizen Anwar al-Alwaki with a drone in Yemen. The Times is also suing for the release of the legal memo justifying the extrajudicial killing. In response, the government has invoked the controversial “state secrets” privilege, arguing that they can neither “confirm nor deny” the drone program’s existence, despite mountains of public evidence that the program exists.

As Rosenthal notes, former CIA director and current Defense Secretary Leon Panetta has repeatedly acknowledged the drone program in public. President Obama has also commented that “obviously a lot of these [drone] strikes have been in” Pakistan. And the administration has continually leaked information about the program to newspapers when it suits their purpose. “So this is not a secret program, but the government continues to hide behind the secrecy shield to avoid turning over the legal document justifying (or at least rationalizing) it,” Rosenthal concluded.

To underscore the absurdity of the government’s secrecy argument, the same week the ACLU was highlighting the government’s refusal to acknowledge the program, the Associated Press published information leaked by anonymous US officials discussing their ongoing negotiations with the Pakistani government to continue to conduct strikes within Pakistan.

Separately, EFF is also still waiting for results from our lawsuit against the FAA, asking that they release information on who has received authorization to fly drones in the United States and for what purpose.

In a stunning revelation, Wired’s Danger Room published documents showing FBI training material instructing agents that it was okay to “bend or suspend the law and impinge on freedoms of others” in the FBI’s hunt for terrorists and criminals. The documents, according to Danger Room, also “warned agents against shaking hands with ‘Asians’ and said Arabs were prone to ‘Jekyll & Hyde temper tantrums.’”

A letter from Senator Richard Durbin to FBI Director Robert Mueller initially tipped Wired off that the documents existed, but the FBI initially refused to release it. The FBI eventually relented and released the full document, “but refused to say who prepared the document; how long it was in circulation; and how many FBI agents, analysts and officials received its instruction.”

Worse, no one at the FBI has been punished for telling its agents to break the law, and there is no plan to re-train the agents who were exposed to the materials. As Senator Dick Durbin said, “It’s stunning that these things could be said to members of our FBI in training. It will not make them more effective in their work and won’t make America safer.”

As the result of a Freedom of Information Act request, the ACLU also received separate FBI guidelines, further illuminating the FBI’s expansive approach to terrorism investigations. As the Washington Postreported, the documents showed “the bureau’s San Francisco division used its Muslim outreach efforts to collect intelligence on religious activities protected by the Constitution.”

Under the U.S. Privacy Act, the FBI is generally prohibited from maintaining records on how people practice their religion unless there is a clear law enforcement purpose. ACLU lawyers said the documents, which the organization obtained under the Freedom of Information Act, showed violations of that law.

The FBI denied to the Post that such surveillance violated any laws. But as past EFF Freedom of Information Act requests have shown, widespread violations involving the FBI’s surveillance authorities are nothing new, especially in national security investigations. These new documents are just another example of why the FBI needs greater accountability when it comes to protecting Americans’ constitutional rights.

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